Citation NR: 9723077
Decision Date: 07/01/97 Archive Date: 07/15/97
DOCKET NO. 95-32 800 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased evaluation for status/post post-
operative repair of a left shoulder dislocation, currently
evaluated at 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to April
1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which granted entitlement to an increased evaluation
for status/post post-operative repair of left shoulder
dislocation from 10 percent to a 20 percent evaluation. This
case is on appeal of the 20 percent evaluation.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he is entitled to an
increased evaluation for status/post post-operative repair of
a left shoulder dislocation because his left shoulder
disability is worse than currently evaluated. Specifically,
he maintains that he experiences pain, limitation of motion,
and loss of muscle strength in his left arm and is not able
to do the things he used to do.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for entitlement to an increased
evaluation for status/post post-operative repair of left
shoulder dislocation.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran’s claim.
2. The veteran’s status/post post-operative repair of left
shoulder dislocation is currently manifested by subjective
complaints of pain in his left shoulder with motion,
occasionally radiating toward his neck. He is able to
provide self care without difficulty and is able to perform
functions of daily living with some limitations. The veteran
is right-handed.
3. Current objective findings of the veteran’s status/post
post-operative repair of left shoulder dislocation include a
16 cm. long surgical scar over the anterior aspect of the
right shoulder, about 2-3 cm. wide. The scar is not
discolored and causes mild disfigurement. There is mild soft
tissue atrophy along the scar over the anterior aspect of the
right deltoid muscle. The right acromioclavicular joint is
prominent and tender to palpation. He is able to place both
hands behind his neck and behind his back without difficulty.
Forward flexion of the left shoulder is to 180 degrees,
extension to 60 degrees, abduction to 180 degrees, and
adduction to 30 degrees. With the arm in 90 degrees of
abduction, external rotation is possible to 60 degrees and
internal rotation to 45 degrees. The circumference of the
left arm and the left forearm equal the uninvolved right
side. An X-ray shows advanced degenerative osteoarthritis of
the glenohumeral joint with disc space narrowing and an
osteophytic rim around the head of the humerus.
4. There is no objective clinical evidence of swelling or
deformity, ankylosis of the scapulohumeral articulation,
malunion, fibrous union, nonunion, or loss of head of the
humerus, recurrent dislocation of the scapulohumeral joint,
or malunion, nonunion or dislocation of the clavicle or
scapula.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for
status/post post-operative repair of left shoulder
dislocation have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10,
4.40, 4.41, 4.45, 4.59, 4.71, 4.71a, Plate I, Diagnostic
Codes (DCs) 5010, 5200, 5201, 5202, 5203 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, he has presented a claim that is plausible.
Further, he has not alleged nor does the evidence show that
any records of probative value, which could be associated
with the claims folder and that have not already been sought,
are available. The Board accordingly finds that the duty to
assist the veteran, as mandated by § 5107(a), has been
satisfied.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1996). Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1996). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluations will be assigned if the disability more
closely approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (1996). When, after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability, such doubt will be
resolved in favor of the veteran. 38 C.F.R. § 4.3 (1996).
The Board notes that the veteran was originally service
connected for scar, post-operative repair, dislocated left
shoulder by rating decision dated in May 1946, and a
noncompensable evaluation was assigned. Subsequently, a 10
percent evaluation was assigned. In November 1994, he
requested an increased evaluation of his left shoulder
disability, which the RO granted to 20 percent effective
November 30, 1994. Since this was not a full grant of the
benefit, the claim for an evaluation in excess of 20 percent
is on appeal. The RO has rated the veteran’s left shoulder
disability under DC 5010-5201. In addition, the Board will
consider DCs 5200, 5202, and 5203 based on ankylosis,
impairment of the humerus, and impairment of the clavicle or
scapula. A review of the most recent clinical evidence of
record, which is the most probative evidence to consider in
determining the appropriate disability rating to be assigned
under the holding in Francisco v. Brown, 7 Vet.App. 55
(1994), does not support an evaluation higher than 20 percent
for status/post post-operative repair of left shoulder
dislocation under any diagnostic code.
In the most recent VA joint examination report dated in
January 1995, the veteran indicated that he dislocated his
left shoulder in service. He had subsequent dislocations and
underwent arthroplasty surgery in 1944 and again in 1947.
After the second surgery, he had no further dislocations.
After service, he worked at an aircraft factory performing
heavy manual labor and retired in 1986. Subjective
complaints included pain in his left shoulder with motion,
occasionally radiating toward his neck. He indicated that
the pain had continually increased over the years. He stated
that he was able to provide self care without difficulty and
was able to perform functions of daily living with some
limitations. Physical examination revealed that he was right
handed. The examiner noted a 16 cm. long surgical scar over
the anterior aspect of the shoulder, about 2-3 cm. wide. The
scar was not discolored and caused mild disfigurement. There
was mild soft tissue atrophy along the scar over the anterior
aspect of the deltoid muscle. There was no swelling or
deformity noted. The acromioclavicular joint was prominent
and was tender to palpation. He was able to place both hands
behind his neck and behind his back without difficulty.
Forward flexion was to 180 degrees, extension to 60 degrees,
abduction to 180 degrees, and adduction to 30 degrees. With
the arm in 90 degrees of abduction, external rotation was
possible to 60 degrees and internal rotation to 45 degrees.
Examination of the left elbow, left wrist, and left hand were
unremarkable. The circumference of the left arm was 34.5 cm.
and the left forearm was 23 cm., equal to the uninvolved
right side. An X-ray reported to show advanced degenerative
osteoarthritis of the glenohumeral joint with disc space
narrowing and an osteophytic rim around the head of the
humerus. The diagnosis was degenerative osteoarthritis of
the left shoulder, post-traumatic, status post multiple
dislocations, status post repeated arthroplasty.
At a personal hearing in January 1996, the veteran testified
that his shoulder does not dislocate anymore but that it
sometimes feels as if it is going to. His related that his
biggest problem was a “bone spur” that every so often clicked
and caused him to have pain emanating from the shoulder down
the arm. He reported having occasional pain depending on how
he used his arm. He indicated that he had some limitation of
motion associated with the left shoulder but primarily pain
if he moved his arm a certain way. He did not take any
medication for the arm nor was he currently doing any
physical therapy. He also related that a private physician
told him that he had a bad case of arthritis and that the
cartilage was all worn off the joint. The private doctor
also told him that his shoulder could be repaired by having
an artificial ball inserted. His wife testified that he was
not able to do some of the things that he used to do. She
indicated that he used to be able to lift things and be
active but he could not dry dishes, mow the lawn, or drive
much. He stated that he had loss of muscle strength but no
numbness.
At the hearing, the veteran submitted a letter from Nicholas
Blavatsky, M.D. dated in December 1995. Dr. Blavatsky
indicated that the veteran was seen for a second opinion
regarding his left shoulder. He related that the veteran had
done relatively well until the past several years when he had
developed more discomfort. He related that the veteran
experienced a tremendous amount of pain with forward flexion
and abduction, and had difficulty sleeping on the affected
side. The pain was primarily in the anterior joint line and
also proximal brachial anterior. The veteran reported a
skipping sensation in the joint on occasions which was very
irritating. Physical examination revealed demonstrable
parascapular muscular wasting with well healed surgical
incisions. He had 150 degrees of flexion, 160 degrees of
abduction, 45 degrees of medial rotation, and 35 degrees of
external rotation. A significant amount of crepitus was
noted with passive and active motion of the shoulder. There
was no gross instability appreciable. The clinical
impression was end stage osteoarthritic change left shoulder
with progressive disability secondary to significant pain.
Dr. Blavatsky concluded that the veteran would be a candidate
at some point in the future for reconstruction to total
shoulder arthroplasty or hemispherical replacement. He also
suggested use of nonsteroidal anti-inflammatory preparations.
The Board finds, based on the evidence of record, that the
objective findings of the veteran's left shoulder disability
do not warrant more than a 20 percent evaluation under DCs
5010, 5200, 5201, 5202, or 5203. Arthritis due to trauma
under DC 5010 substantiated by X-ray findings is rated as
degenerative arthritis under 5003. Under DC 5003,
degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic code for the specific joint or joints
involved.
Applying the provisions of 38 C.F.R. § 4.71a, DC 5201 (the
diagnostic code the veteran is currently evaluated under) to
the clinical evidence summarized above, the Board concludes
that the criteria for a 30 percent rating under DC 5201 are
not met. Specifically, a 30 percent evaluation is warranted
with limitation of motion of the arm to 25 degrees from the
side of the minor (in this case, left) arm. The most recent
VA examination showed that he had forward flexion to 180
degrees, extension to 60 degrees, abduction to 180 degrees,
and adduction to 30 degrees. With the arm in 90 degrees of
abduction, external rotation was possible to 60 degrees and
internal rotation to 45 degrees. Moreover, in the most
recent physical examination by a private physician dated in
December 1995, he had 150 degrees of flexion, 160 degrees of
abduction, 45 degrees of medial rotation, and 35 degrees of
external rotation. While the evidence is uncontroverted that
the veteran has subjective complaints of limitation of
motion, there is no competent evidence that his limitation
warrants a 30 percent evaluation under this code.
Further, the Board notes that the recent clinical findings do
not disclose that he has ankylosis of the scapulohumeral
articulation. Ankylosis is defined as stiffening or fixation
of a joint. For example, on the recent VA examination he was
able to place both hands behind his neck and behind his back
without difficulty. Therefore, the Board can find no basis
under DC 5200 to grant the veteran an increased evaluation.
In addition, there is no evidence of fibrous union, nonunion,
or loss of head of the humerus such to warrant a higher than
20 percent evaluation under DC 5202. Finally, the Board
notes that a 20 percent evaluation is the highest evaluation
available under DC 5203. Thus, there is no basis on which to
grant a higher than 20 percent evaluation under DC 5203 under
any situation.
The VA has a duty to acknowledge and consider all regulations
which are potentially applicable based upon the assertions
and issues raised in the record and to explain the reasons
used to support the conclusion. Schafrath v. Derwinski, 1
Vet.App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1, that requires that each
disability be viewed in relation to its history and that
there be an emphasis placed upon the limitation of activity
imposed by the disabling condition, and 38 C.F.R. § 4.2 which
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran's working or
seeking work. 38 C.F.R. § 4.10 states that, in cases of
functional impairment, evaluations are to be based upon lack
of usefulness, and medical examiners must furnish, in
addition to etiological, anatomical, pathological, laboratory
and prognostic data required for ordinary medical
classification, full description of the effects of the
disability upon a person's ordinary activity. This
evaluation includes functional disability due to pain under
the provisions of 38 C.F.R. § 4.40. Special consideration is
given to factors affecting function in joint disabilities
under 38 C.F.R. § 4.45. These requirements for the
consideration of the complete medical history of the
claimant's condition operate to protect claimants against
adverse decisions based upon a single, incomplete or
inaccurate report and to enable the VA to make a more precise
evaluation of the level of disability and any changes in the
condition. The Board has considered these provisions, taking
into consideration the objective findings as well as the
subjective statements of the veteran, and finds that his left
shoulder disability warrants no more than a 20 percent
evaluation.
ORDER
Entitlement to an increased evaluation for status/post post-
operative repair of a left shoulder dislocation, currently
evaluated at 20 percent disabling, is denied.
L. M. BARNARD
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -